What to do about daddy?
By Wendy McElroy
web posted January 10, 2005
By court order, 3-year-old Evan Parker Scott of Jacksonville,
Fla., is being separated from his adoptive parents and returned
to the biological mother who surrendered him at birth.
Why? Because something was missing from the adoption
process: the father's consent.
In 2005, family courts will confront a question head-on: "What to
do about Daddy?" In the case of Evan, the question is, "what to
do about the "birth father"? -- a term that properly denotes the
biological and often unmarried father of an adopted child.
The media has discussed Evan's case as a tragedy caused by the
court validating "father's rights" at the expense of a child's
welfare. Whether the rights of Evan's biological father were in
fact violated remains a point of debate in this specific case, but
overall, a good argument can be made for the opposite view: By
ignoring the father's rights at the outset of an adoption
proceeding, courts set the stage for this kind of needless tragedy.
When custody is contested, the child's welfare should be
foremost. Accordingly, commentary has centered on Evan. The
children's advocacy site Hear My Voice offers poignant
coverage of the transfer to his birth mother. In the Boston Globe,
Jeff Jacoby writes, "Only a legal system that believes ties of
blood are the truest expression of parenthood could order a boy
stripped of the parents who have raised and cherished him from
birth."
Jacoby misses some salient points.
One: Evan's situation did not arise because his father suddenly
appeared after three years. Five months after Evan's birth he
filed papers with the court and has mounted a continuous legal
battle.
The tragedy occurred, at least in part, because the court
transferred Evan's guardianship (with a presumption of adoption)
to the Scotts before the father's claim had been resolved. In
doing so, I believe the court acted inappropriately, and with
tragic consequences.
Two: the court acted inappropriate because, when both parents
are known, they are both responsible for the child's welfare and
they possess an equal claim to parenting. If parental
responsibility is to be legally binding -- e.g. for child support --
so, too, is the parental claim. Before an unwed woman can put a
child up for adoption, the father should be given the opportunity
to raise his child.
Four: saying that a child's welfare should be foremost does not
negate the rights of the two parents. The appropriate action is
one that preserves the rights of all involved through negotiation if
at all possible. Only if a parent is a clear threat to the child should
his or her rights be summarily abrogated.
Good Morning America compared Evan's case to "‘Baby
Richard'…a (1995) court battle that went all the way to the U.S.
Supreme Court." In that case, a 4-year-old was taken from
adoptive parents and given to his birth father.
However, the cause of birth fathers' rights might not fare well if
‘Baby Evan' becomes a test case. Evan's biological father was
convicted of and served a jail term for assaulting and
hospitalizing his birth mother while she was pregnant. This,
unfortunately, lends credibility to the image, in these types of
adoption cases, of the "birth fathers" as uncaring, unstable and
unfit for parenthood.
Moreover, it is a widely accepted belief that in cases where there
is a history of domestic violence, fathers bid for custody as a
way of harassing the mother.
These are two common objections to birth fathers' involvement
in adoption: they are uncaring or unfit parents; and, they will use
the courts to harass mothers. Without question, a number of birth
fathers richly deserve such criticism. But it is improper to deny
rights to an entire category of people because individuals within
that category behave badly.
The birth father I met at a conference of the National Coalition of
Free Men may very well be as "typical" as Evan's. He and his
mother had driven across several states to attend the meeting in
the hope of making contacts to help his case. A serious young
man of about 20-years-old, he explained that his girlfriend left
town without telling him she was pregnant. She put the child up
for adoption after running the public notice to the birth father,
which is legally required; the notice was an ad in the back of an
out-of-town paper to which he did not subscribe.
By the time he discovered his fatherhood, the window for
claiming parental rights had expired. Now, he and his family
were desperately seeking a way to gain custody and raise the
child themselves.
How can courts help to prevent heart-wrenching father-child
reunions, like the one Evan is now experiencing?
They should acknowledge at the very beginning of an adoption
proceeding that both responsible parents have an equal voice.
Each parent must be presumed responsible until shown
otherwise. And no adoption placement should occur if either
parent wants custody.
Moreover, the notification process should meet a high standard
of diligent effort before parental rights can be suspended.
Evan is now in the custody of his mother who filed specifically to
block the father's claim; the latter has been granted liberal, but
supervised, visitation.
The court's misconduct, of course, extends beyond whatever
original slighting of father's rights it may have allowed to occur.
To correct that "error" humanely, the court and adults involved
might have arranged liberal visitation for the father with Evan's
adoptive parents. But the mother's filing precluded that very
possibility.
The saddest irony is also the worst indictment of the family court
system. Evan was desperately wanted by the Scotts, and his
father also very much wants him. The only person who didn't
want him is the one who now has custody: the mother.
I retract my former statement: perhaps this would make a good
test case.
Wendy McElroy is the editor of ifeminists.com and a research
fellow for The Independent Institute in Oakland, Calif. She is the
author and editor of many books and articles, including the new
book, "Liberty for Women: Freedom and Feminism in the 21st
Century" (Ivan R. Dee/Independent Institute, 2002). She lives
with her husband in Canada.
Enter Stage Right -- http://www.enterstageright.com